Saturday, February 22, 2014

Apple, Samsung confirm failure of settlement effort in early February but keep talking

In January, Apple and Samsung informed Judge Lucy Koh, the federal district judge presiding over two patent infringement cases between them in the Northern District of California, that they were going to have settlement talks, with the help of a mutually agreed-upon mediator and involving both companies' CEOs, no later than on February 19. The proposal was made because the court urged the parties to explore a settlement ahead of their next trial scheduled to begin on March 31 in San Jose.

Media reports from Korea recently indicated that the CEOs, accompanied by senior in-house counsel, had indeed held a meeting, but that an agreement was not reached. Late on Friday by California time, a joint report by Apple and Samsung's counsel to Judge Koh confirms that "[t]he parties [with their delegations headed by Apple CEO Tim Cook and Samsung CEO IT and Mobile Communications JK Shin] attended a full-day negotiation session with the mediator during the first week in February" and that they "did not reach an agreement at that session". But the report also confirms that the lines of communication haven't broken down: "Since that session, one or more of the foregoing party representatives has spoken with the mediator numerous times in order to progress the settlement efforts. For example, Apple representatives held telephonic conference calls with the mediator more than six times after the mediation. Samsung representatives held telephonic conference calls and other communications with the mediator more than four times after the mediation."

Apple and Samsung "remain willing to work through the mediator jointly selected by the parties". But it appears to me that they need more guidance from courts, in the U.S. and elsewhere, before this global dispute can end in a cross-license agreement involving the "anti-cloning" provision Apple apparently and understandably insists on. Guidance will have to come from the U.S. but probably needs to come from more than one country. For example, there should be a ruling in the foreseeable future on the parties' Australian litigation. Apple's offensive claims went to trial last year; Samsung's FRAND-related claims will be tried soon.

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About Me

Florian Mueller is an app developer who used to be an award-winning intellectual property activist. His 30 years of software industry expertise span different market segments (games, education, productivity and infrastructure software), diverse business models, and technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof, except that he is long AAPL.) He is now developing games for smartphones and tablet computers.